Summary

School breakfast, lunch and after school snack programs are administered by the Department following criteria set forth in 7 CFR §§ 210, 220, 215 and 245. The Dietary Guidelines for Americans (DGAs) developed by the United States Department of Agriculture’s Center on Nutrition Policy and Promotion provide the basis for all the nutritional guidelines for compliance with these programs. Specifically, the DGAs provide advice for healthy Americans ages two and over about food choices that promote health and prevent disease. The DGAs provide guidance on ways to build a healthy diet and lifestyle based on categorizing food into specific groups and providing recommendations on how many servings of each group to eat daily. The DGAs also provide information on engaging in physical activity and maintaining a healthy body weight.

The New Jersey Department of Agriculture’s Division of Food and Nutrition feeds approximately 588,000 school children daily through the Federal School Breakfast and Lunch programs. These programs provide nutritionally balanced meals to children at low or no cost. Now is the time to recognize that good nutrition is just as important as good grades. Achievements in academics and athletics are often indicators of a school district’s success. Why shouldn’t the eating habits of New Jersey’s school children be just as important, especially when good nutrition bolsters academic and athletic performance?

In May 2003, New Jersey launched its Healthy Choices, Healthy Kids campaign to combat childhood obesity and Type II diabetes and ensure children have access to healthy and nutritious food. The campaign is a joint initiative involving the Departments of Agriculture, Education, and Health and Senior Services. As part of that initiative, the Department of Agriculture announced it would require school districts to adopt a school nutrition policy and would develop a model policy as a guide.

The proposed amendments and new rules require school districts to improve the nutritional value of food offered in cafeteria a la carte lines, vending machines, school stores and fundraisers. They will also help limit the type of foods that compete with the Federal school meal programs, promote healthy eating habits and reinforce nutrition education as required by the New Jersey Department of Education’s Core Curriculum Standards (April 2004). The Department of Agriculture supports a holistic approach to modifying student behaviors related to healthier food choices. These amendments and new rules, along with the Core Curriculum Standards, will ensure that a consistent health message is not only taught to students in the classroom, but will also be demonstrated by actual food choices available on school property.

Federal school nutrition regulations promulgated by the U.S. Department of Agriculture for the administration of child nutrition programs define and prohibit the sale of foods of minimal nutritional value during the school breakfast and lunch periods. Current State standards extend this prohibition from the beginning of the school day until after the end of the last lunch period. These proposed amendments and new rules further extend the prohibition of the sale, service or free promotion of foods of minimal nutritional value throughout the school day as well as expanding the restricted categories of food items made available to students as outlined within the Department’s Model School Nutrition Policy. Foods of minimal nutritional value as defined by USDA are: soda water water ices, chewing gum, hard candy, jellies, gums, marshmallow candies, fondant, licorice, spun candy, and candy-coated popcorn. These foods are virtually “empty calorie” foods and would not meet any standards in the policy.

The Model Policy also requires schools to provide adequate time for student meal service and consumption. Studies show that environment has a powerful influence on behavior. Meal periods need to be long enough for students to eat and socialize. This standard is consistent with the sample healthy eating policy from the National School Boards Associations' publication Fit, Healthy, and Ready to Learn. The policy states that "students . . . shall have . . . adequate time to eat, relax, and socialize: at least 10 minutes after sitting down for breakfast and 20 minutes after sitting down for lunch."

A recommendation has also been included to schedule physical education or recess before lunch whenever possible. Results of a study published in the Journal of the American Dietetic Association (September 1996) suggest that scheduling recess before lunch may significantly increase the amount of school meal components eaten by students at lunchtime. As a result, children in the study were more well-nourished and less hungry when they returned to class. This lack of hunger allowed them to perform better in school after lunch. Additional benefits of scheduling recess before lunch are that children behave better both during and after lunch. They do not rush through their meal in order to extend their playground time.

The proposed amendments and new rules also clarify the application of these rules not only to all participating sponsors (both public and non-public) but also to all school districts required to make school lunch and/or breakfast available pursuant to N.J.S.A. 18A:33-4 and 5 and 18A:33-9 (P.L. 2003, c.4) regardless of participation in the National School Lunch and/or School Breakfast Programs.
The following amendments and new rules are proposed:

N.J.A.C. 2:36-1.1 sets forth the definitions of terms used in the proposed amendments and new rules. New definitions for “candy,” “competitive foods,” “meal,” “Model School Nutrition Policy” and “sugar” have been added.

A new N.J.A.C. 2:36-1.7 has been added to require school districts to adopt a local level school nutrition policy by September 2006, and to implement the standards specified in the Department’s Model School Nutrition Policy by September 2007.

N.J.A.C. 2:36-1.7 through 1.11 have been recodified as N.J.A.C. 2:36-1.8 through 1.12.
N.J.A.C. 2:36-1.8(b) has been added to clarify that all food and beverages served outside the School Lunch, Breakfast or After School Snack Program shall comply with the Department’s competitive food policy as set forth in N.J.A.C 2:36-1.11.

N.J.A.C. 2:36-1.9 has been amended to clarify that the Department may take fiscal action against sponsors for noncompliance with the Department’s Model School Nutrition Policy.

N.J.A.C. 2:36-1.11 has been amended to add new language to define the standards specified in the Department’s Model School Nutrition Policy. By September, 2007, this amendment expands the prohibition of the service, sale or free promotion of certain foods, such as foods of minimal nutritional value, foods with sugar as the first ingredient, food that are high in fat (more than eight grams per serving) as outlined within the Policy. In addition, it limits the types of beverages that can be sold, based upon the grade levels of the children served and limits the portion size of certain beverages.
This applies not only to all public and non-public sponsors who participate in Federally or State funded child nutrition programs but also to all school districts required to make school lunch available regardless of participation in the National School Lunch or School Breakfast Programs. A Model School
Nutrition Policy has been added as the chapter Appendix.

A new N.J.A.C. 2:36-1.13 has been added to require schools to implement the USDA “Biosecurity Checklist for School Food Service Programs” which is adopted and incorporated by reference. This checklist provides guidelines on how to form a school food service biosecurity management team, to prioritize measures to strengthen biosecurity inside and outside the primary food service area, and to create a school food service biosecurity management plan.

As the Department has provided a 60-day comment period for this notice of proposal, this notice is excepted from the rulemaking calendar requirements pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

According to a 2001 Surgeon General’s report, the problem of obesity and overweight children is a national epidemic. There are nearly twice as many overweight children and almost three times as many overweight adolescents as there were in 1980. In addition to being one of the leading causes of Type II diabetes in children, obesity also lowers children’s self esteem and hinders academic performance.

Good nutrition helps keep children healthy. By establishing healthy eating habits, children lessen their risk for obesity-related health problems. Schools have a daily influence on children’s diet from the choices offered in the lunch lines to the items stocked in vending machines.

The proposed amendments and new rules will help improve the nutritional diet of school children by setting nutritional standards that limit the amount of fat and sugar in foods available to them during the school day. The amendments also ensure that children have access to a healthy breakfast, a healthy lunch and healthy snacks every day they are in school.

Therefore, the proposed amendments and new rules will have a positive social impact, by helping children develop good eating habits that will last a lifetime.

Economic Impact

Adoption of the proposed amendments and new rules will require many school districts to work with their vendors to replace unhealthy offerings with affordable alternatives that meet the standards outlined in the Department’s Model School Nutrition Policy. While healthier foods may be more expensive to provide, those costs will likely come down as more food manufacturers produce items that meet the increasing consumer demand for healthier offerings. Some food manufacturers may be required to expend resources to develop new products that meet the nutritional standards set forth in these proposed amendments and new rules. However, many food manufacturers already have products that meet these standards. Ultimately, there should be a positive economic impact on the State of New Jersey as the promotion and consumption of healthier foods helps to reduce costs associated with obesity-related illnesses and injuries.

Federal Standards Analysis

Executive Order No. 27 (1994) and N.J.S.A. 52:14B-23 (P.L. 1995, c.65) require administrative agencies which adopt, readopt, or amend any State rules that exceed any Federal standards or requirements to include in the rulemaking a comparison between two sets of standards and an explanation of the costs and benefits associated with adopting a State standard that exceeds a Federal standard. For the most part, these amendments and new rules are in compliance with the rules set forth in the Federal meal programs as set forth at 7 CFR §§ 210, 220, 215 and 245. However, the federal standards are exceeded by these rules in the following manner:

1. The federal regulations prohibit the sale of foods of minimal nutritional value during school breakfast and lunch periods. Current State standards extend this prohibition from the beginning of the school day until after the end of the last lunch period. These proposed amendments and rules would extend that prohibition to the entire school day, which will send consistent nutrition message to students while reducing the costs associated with specific time monitoring. It is in the best interest of the students to implement consistent nutrition policies. While actual cost figures are not available at this time, the Department believes that if it were to simply adhere to the Federal standards, additional staff would be required at the school district level and State level to ensure that the policy was being enforced during breakfast and lunch periods, since schools often have multiple lunch periods. Extending the prohibition on foods of minimal nutritional value to the entire school day provides for ease of enforcement and clarity for all involved.

2. The list of those foods considered to be foods of minimal nutritional value have been replicated in the amendments and new rules. However, additional limitations have been imposed on the amount of fat and sugar allowed in foods that are available on school property. Current Federal regulations do not deal with the amount of fat and/or saturated fat or sugar contained in the limited list of foods of minimal nutritional value as defined by USDA. Rather, they only focus on a narrow definition of those foods containing less than five percent of eight specific specified nutrients. By substituting more nutritious food choices for those of minimal nutritional value while providing a broad spectrum of items, there may be a slight increase in cost, but the increased health benefit to the students (and therefore, lower health care costs) outweighs any minimal cost increase that might result.

3. Beverages, other than water or milk that has two percent or less fat are limited to a 12-ounce portion size. Whole milk is limited to an eight-ounce portion size. Controlling portion sizes is key to battling the problem of childhood obesity. Reducing the fat content contained while still providing a healthy beverage enable students to have beverages they like but in appropriate portion sizes. Federal regulations are silent as to any recommendations for upper limits of beverage portion sizes; the simply require a minimum of four ounces of juice or eight ounces of milk. Limiting portion sizes will not adversely affect costs to the local district.

Jobs Impact Statement

It is not anticipated that the proposed amendments and new rules will result in the generation or loss of jobs.

Agriculture Industry Impact

The proposed amendments and new rules will have a positive impact on New Jersey agriculture by increasing opportunities for schools to use New Jersey-grown fruits and vegetables in their breakfast, lunch and after-school snack programs. The amendments and new rules support the Farms-to-School initiative, which aims to increase the amount of locally grown produce used in the Federal meal programs as well as in a la carte lines and vending machines.

Regulatory Flexibility Analysis

The proposed amendments and new rules affect local boards of education or other schools participating in the Department’s child nutrition programs. To the extent that any non-public school is a small businesses as defined by the Regulatory Flexibility Act N.J.S.A. 52:14B-16 et seq, small businesses will be affected. The proposed amendments and new rules will impose no additional reporting or recordkeeping requirements beyond those currently required by Federal regulations. However, the proposed amendments and new rules will require school districts to adopt a local level school nutrition policy and require districts to improve the nutritional value of food offered in cafeteria a la carte lines, vending machines, school stores and fundraisers. While some people believe that more nutritious food may cost more, there are no figures to substantiate this premise. Districts will have to document that they have served these food and net the nutritional standards as outlined within these amendments and new rules; however, this documentation is the same type of information that is already required by Federal regulations. In addition, schools participating in the Department’s child nutrition programs will have to be in compliance with requirements of the Biosecurity Checklist as described in the Summary above. There will be no costs incurred for employment of professional services or any capital expenditures. The compliance standards required by these amendments and new rules are easily identifiable by those individuals responsible for the meal service and menu planning at the local level and the Department will continue its extensive and ongoing training programs to ensure compliance.

Smart Growth Impact

The Department anticipates that there will be a no impact on the achievement of Smart Growth or upon the implementation of the State’s Development and Redevelopment Plan from the proposed amendments and new rules.

Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

2:36-1.1 Definitions
The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.
…

“Candy” is defined as any food item, that as served in its finished form, contains, by weight, 40 percent or more sugar (in crystalline form or in solution as syrup, both monosaccharides and disaccharides) and/or other sweetening agents, or any food product commonly referred to as “candy.”
…

“Competitive foods” means all food and beverage items, other than the reimbursable meal, sold, served, or given away during the school day.
…

“Meal” means a reimbursable school breakfast, school lunch and/or after school snack.
“Model School Nutrition Policy” means the nutrition policy containing standards developed by the State Department of Agriculture incorporated herein by reference as the chapter Appendix.

“Sugar” means any class of water-soluble crystalline carbohydrates having a sweet taste. Sugar also comes in syrup form. Other words for sugar include, but are not limited to, fructose, sucrose, lactose, maltose, glucose, galactose, honey, dextrin, malt, molasses, maple syrup and corn syrup.

2:36-1.7 Local school nutrition policy

a) By September 2006 school districts/sponsors shall adopt a local School Nutrition Policy. The Department hereby adopts and incorporates by reference the Dietary Guidelines for Americans and the USDA nutrition standards for National School Lunch, School Breakfast and/or After School Snack programs as required by 7 CFR Parts 210, 215, 220 and 245 as the basis for this local policy. Such policies shall regulate the types of food items offered outside the Federal meal requirements, such as a la carte sales, vending machines, school stores and fundraisers. The policy shall also address the dining environment, adequate time for student meal service and consumption and coordination of lunch and recess or physical education schedules. The policy adopted by the school district/sponsor shall be implemented by September 2006.

1. A copy of the Dietary Guidelines for Americans may be obtained at http://www.usda.gov/cnpp/DietGd.pdf. A copy of the Guidelines are also on file in the Director’s office, Division of Food and Nutrition, NJ Department of Agriculture, P.O. Box 334, Trenton, NJ 08625.

2. A copy of 7 CFR Parts 210, 215, 220 and 245 is on file in the Director’s office, Division of Food and Nutrition, NJ Department of Agriculture, P.O. Box 334, Trenton, NJ 08625.

b) By September 2007, each school district/sponsor shall implement a policy consistent with New Jersey Department of Agriculture’s Model School Nutrition Policy, which is set forth in the chapter Appendix. The Model School Nutrition Policy is a minimum standard and does not preclude the adoption of a more stringent policy by a school district/sponsor.

[1.7] 1.8 Nutrition Standards

(a) Nutrition standards established by the Department for meals served under the National School Lunch, School Breakfast, and After School Snack Programs or as mandated by N.J.S.A. 18A:33-4 shall be identical to those established in the USDA regulations at 7 CFR § 210.10 and Part 220.8 respectively. These Federal regulations and all subsequent amendments are adopted herein by reference.

These standards are published in the Department's Nutrition Standards for School Nutrition Programs available through the New Jersey Department of Agriculture, Division of Food and Nutrition, PO Box 334, Trenton, New Jersey 08625-0334.

(b) Nutrition standards for all other food and beverage items shall comply with the Competitive Food Policy as referenced in NJAC 2:36-1.11.

[1.8]1.9 Review and Evaluation

(a) Each sponsor's implementation of the Free and Reduced Price Policy and the Model School Nutrition Policy shall be reviewed and evaluated by the Division on a continuing basis.

(b) Federal and State child nutrition program funds may be withheld and/or fiscal action taken against sponsors (see: 7 CFR § 210.19(c), 215.12(a), 220.14(a) and 245.10) found not to be in compliance with applicable Federal regulations (7 CFR Parts 210, 215 [and], 220 and 245) and the Department’s Model School Nutrition Policy.

(c) Sponsors shall not alter or amend standards set forth in the Free and Reduced Price Policy or the Department’s Model School Nutrition Policy without prior written approval by the Division.

[1.9]1.10 No change in text.

[1.10] 1.11 Competitive food policy

(a) [The sale or free promotion of extra food items of minimal nutritional value on the school property at any time before the end of the last lunch period shall not include those items prohibited by regulations promulgated by the United States Department of Agriculture for the administration of child nutrition programs and as contained in the Department’s nutritional standards as referenced in N.J.A.C.2:36-1.7. This policy also applies to all school districts required to make school lunch available pursuant to N.J.S.A 18A:33-4 regardless of participation in the National School Lunch Program.] The competitive food policy prohibits certain snack and beverage items by regulations promulgated by the USDA for the administration of child nutrition programs and as contained in the Department’s Model School Nutrition Policy. The following items shall not be served, sold or given away as a free promotion anywhere on school property at anytime before the end of the school day, including items served in the reimbursable After School Snack Program:

1. Foods of minimal nutritional value as defined by USDA regulations;

2. All food and beverage items listing sugar, in any form, as the first ingredient. (beginning September1, 2007); and

3. All forms of candy. (beginning September 1, 2007);

(b) Schools shall reduce the purchase of any products containing trans fats. (beginning September 1, 2007) (Federal labeling of trans fats on all food products is required by January 1, 2006.)

[b] (c) No change in text

(d) As of September 2007 all snack and beverage items, sold or served anywhere on school property during the school day, including items sold in a la carte lines, vending machines, snack bars, school stores and fundraisers or served in the reimbursable After School Snack Program, shall meet the following standards:

1. Based on manufacturers’ nutritional data or nutrient facts labels:
i. No more than eight grams of total fat per serving, with the exception of nuts and seeds; and
ii. No more than two grams of saturated fat per serving.

2. All beverages, other than milk containing two percent or less fat, or water, shall not exceed a 12-ounce portion size; Whole milk may not exceed an eight-ounce portion;

3. In elementary schools, beverages shall be limited to milk, water or 100 percent fruit or vegetable juices;

4. In middle and high schools, at least 60 percent of all beverages offered, other than milk or water, must be 100 percent fruit or vegetable juice; and

5. In middle and high schools, no more than 40 percent of all ice cream/frozen desserts shall be allowed to exceed the above standards for sugar, fat and saturated fat.

(e) Food and/or beverages served during special school celebrations or during curriculum related activities shall be exempt from this policy with the exception of foods of minimal nutritional value as defined by USDA regulations 7 CFR Part 210.10.

(f) Medical exemption This policy does not apply to:

1. Medically authorized special needs diets pursuant to 7 CFR Part 210;

2. School nurses using foods of minimal nutritional value (FMNV) during the course of providing health care to individual students; or

3. Special needs students whose Individualized Education Plan (IEP) indicates their use for behavior modification.

(g) The requirements of (a) – (f) above not only apply to all participating sponsors, both public and non-public, but also to all school districts required to make school lunch available pursuant to N.J.S.A. 18A:33-4 regardless of participation in the National School Lunch Program.

[1.11] 1.12 (No change in text.)

2:36-1.13 Biosecurity for school food service

(a) The Department hereby adopts and incorporates by reference the USDA “A Biosecurity Checklist for School Food Service Programs,” March 2004 version, as amended and supplemented, as the State’s Biosecurity policy for child nutrition programs.

(b) By September 1, 2006, school districts/sponsors shall implement a local level biosecurity plan consistent with the parameters identified in (a) above.

(c) A copy of the publication in (a) above is available at:
http://schoolmeals.nal.usda.gov/Safety/biosecurity.pdf. A copy is also available at the Division Director’s Office, New Jersey Department of Agriculture, Division of Food and Nutrition, P.O. Box 334, Trenton, New Jersey 08625.


Charles M. Kuperus, Secretary
New Jersey Department of Agriculture
September 22, 2004